Crown Marina Pty Ltd v City of Port Adelaide Enfield (No 2) - [2010] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CROWN MARINA PTY LTD v CITY OF PORT ADELAIDE ENFIELD & ANOR (No 2)
[2010] SASC 121
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
29 April 2010
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY
Application of appellants for costs - consideration of court's discretion as to costs - consideration of general rule that costs follow event - no reason shown to depart from that general rule.
Supreme Court Civil Rules 2006 (SA) r 263; Development Act 1993 (SA) s 38; Environment Planning and Assessment Act 1979 (NSW) s 123; Land and Environment Court Act 1979 (NSW) s 69(2), referred to.
Oshlack v Richmond River Council (1998) 193 CLR 72, distinguished.
Lumbers & Ors v City of Port Adelaide Enfield & Ors [2008] SAERDC 90, considered.

CROWN MARINA PTY LTD v CITY OF PORT ADELAIDE ENFIELD & ANOR (No 2)
[2010] SASC 121
Full Court: Doyle CJ, Bleby and Anderson JJ

THE COURT. On 4 March 2010 this Court allowed an appeal by the appellant, the original applicant for Development Approval, from a decision of the Environment Resources and Development Court (“the ERDC”). The respondent council, in August 2007, had granted what was then properly described as provisional Development Plan consent, subject to conditions, to the appellant for the construction of 50 marina berths in the North Haven Marina. The ERDC had allowed an appeal from that decision and had set aside the consent.
The Council did not seek to be represented in the Court below or in this Court. The second respondent, Mrs Hage, did not seek to be represented on the appeal in this Court either, save on the question of costs. She was, ultimately, the sole and successful appellant in the ERDC against the Council’s decision to approve the application. No costs are awarded in the ERDC.
The successful appellant in this Court then sought an order that Mrs Hage pay the costs of its appeal to this Court. On 25 March 2010, after hearing argument, we ordered that Mrs Hage pay the appellant’s costs of the appeal for reasons to be published. These are those reasons.
The Court has an unfettered and wide discretion to award costs of the proceedings before it. However, the exercise of the discretion is subject to the general rule, itself subject to exceptions which are not relevant in this case, that costs follow the event,[1] and will usually be awarded in favour of the successful party.
[1] Supreme Court Civil Rules 2006, r 263(1).
Mrs Hage did not participate in the appeal. However, it was only because of her argument in the ERDC that that Court was persuaded, wrongly as we have held, to overturn the decision of the Council. That decision was in favour of the appellant. The appellant’s only redress was to appeal to this Court, which appeal was successful.
Although Mrs Hage did not oppose the appeal in this Court, the appellant was still required to incur the costs of a successful appeal as a direct result of Mrs Hage’s action in the Court below. In those circumstances, unless there is some countervailing factor, the appellant would be entitled to an order for costs in its favour.
Mrs Hage’s objection to the proposal in the ERDC was based on the fact that, although there was a 15 metre fairway adjacent to her property protected by an easement in her favour, that was inadequate for the size of the boat owned by her and her husband. She claimed that the proposal should only be approved if the fairway was extended to at least 18 metres, thus conferring on Mrs Hage de facto rights to traverse an extra three metres onto the appellant’s land beyond the rights the subject of her easement. That argument was accepted by the ERDC but rejected by this Court.
Counsel for Mrs Hage relied on the fact that the appellant had earlier successfully applied to the Council for provisional Development Plan consent for the construction of a 103 berth marina in the same marina basin. Mrs Hage and others appealed to the ERDC against that decision. The Court decided that the proposal warranted Development Plan consent “provided that it is amended to provide for the removal of the 20 metre berth closest to the Hages’ property and the relocation southwards of the ‘southern walkway’, which will enable the widening of the adjacent fairway for vessels from 15 metres to a minimum of 18 metres”.[2] The Court had provided the parties with an intimation of its decision, and the developer amended its proposal to remove the 20 metre berth closest to the Hage’s property and widen the adjacent fairway. On that basis the appeal was allowed for the purpose of varying the conditions imposed by the Council and approving the amended proposal. It is clear that the developer, in relation to that proposal, agreed to act in accordance with the Court’s intimation in order to obtain its approval.
[2] Lumbers & Ors v City of Port Adelaide Enfield & Ors [2008] SAERDC 90, [50].
It appears that the developer did not proceed with that proposal. When the present proposal was approved and Mrs Hage instituted her second appeal, the appellant made clear that it would not amend the proposal in the same way. As is apparent from the evidence before the ERDC in this appeal, the relevant Australian standard for the width of channels and fairways depends significantly on the number, type and size of boats within the marina and frequency of boat usage. This was a substantially different proposal for less than half the number of berths than in the first proposal.
While Mrs Hage may have been encouraged by the attitude taken by the ERDC in the first appeal, the Court in the second appeal was dealing with a substantially different proposal in respect of which the developer was not prepared to make the same concession. The appeal in the ERDC proceeded accordingly, the sole protagonist being Mrs Hage. There was no guarantee that the ERDC in the second appeal or this Court on appeal from that Court would take a similar attitude in respect of this proposed development. Mrs Hage must be taken to have been aware of that prospect. She proceeded with the appeal in the ERDC which, as this Court found, wrongly acceded to her argument. Mrs Hage’s hope or even expectation based on the first appeal is insufficient in the circumstances to deprive the appellant of its costs of this appeal.
Counsel for the plaintiff also sought to rely on the decision of the High Court in Oshlack v Richmond River Council,[3] likening objector appeals in respect of Category 3 developments,[4] which this was, to public interest litigation of the nature of that before the Court in Oshlack. In Oshlack s 123 of the Environmental Planning and Assessment Act 1979 (NSW) authorised any person to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of that Act, whether or not any private right of that person had been or might be infringed because of the breach. It also provided that proceedings could be brought by a person on that person’s own behalf or on behalf of other persons or bodies having a like or common interest in the proceedings. Section 69(2) of the Land and Environment Court Act 1979 (NSW) conferred a discretion on the Land and Environment Court to award costs. The Land and Environment Court Judge in that case declined to award costs to successful respondents, being the developer and the Council. The Judge found that the appellant had no personal interest in the outcome of the proceedings, but was pursuing, in effect, public interest litigation, for which he had an arguable case.
[3] [1998] HCA 11; (1998) 193 CLR 72.
[4] See Development Act 1993 (SA), s 38.
In their joint judgment Gaudron and Gummow JJ said:
The present legislative regime apart, the Supreme Court, in its inherent equity jurisdiction, may, on the application of the Attorney-General for New South Wales, and without any relator, restrain infringement of prohibitions and restrictions imposed under various legislation, not for the benefit of particular individuals, but for the benefit of the public or a section of the public. In so taking proceedings to secure observance of the law, the Attorney-General represents the public generally. If in a case initiated and actively conducted in this fashion the Attorney-General fails, any costs awarded against the Attorney-General will be borne by the public purse. To what degree, it may be asked, should the position be any different where statute has authorised any person, otherwise than as a relator, to institute and conduct such proceedings to secure the observance of legislation enacted for the benefit of the public or a section of the public? More precisely, is there a miscarriage in the exercise of the discretion as to costs conferred by s 69 of the Court Act to leave the costs to lie where they fall, after giving due weight to the countervailing interest of the successful litigant in obtaining an order for its costs and allowing for the other factors taken into consideration by Stein J in this case? The answer must be that, in the present case, there was no miscarriage.[5]
(Footnote omitted)
[5] Ibid [48]; 90-91.
There may be cases where a similar decision would be justified on an appeal to this Court by an unsuccessful objector who began an appeal process under s 38 of the Development Act 1993 (SA). However, there was no element of any such public interest litigation in this case. The appeal was concerned almost exclusively with what were said to be the private rights of Mrs Hage and the occupiers of her land, and not with any matters of general public interest. It is not to the point that the ERDC is a no costs jurisdiction in respect of objector appeals. When the matter reaches this Court, where there is a discretion, that will be exercised in accordance with well‑recognised principles.
There have been no factors demonstrated in this case which would displace the usual rule that costs of the appeal should follow the event.